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NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 31 OF 2009

P. SATYANARAYANA MURTHY APPELLANT

VERSUS

THE DIST. INSPECTOR OF POLICEAND ANR. RESPONDENTS

J U D G M E N T

AMITAVA ROY, J.

The instant appeal calls in question the judgment

and order dated 25.4.2008 rendered by the High Court of

Judicature, Andhra Pradesh at Hyderabad in Criminal

Appeal No. 262 of 2002, sustaining the conviction of the

appellant under Section 13(1)(d)(i) & (ii) read with Section

13(2) of the Prevention of Corruption Act 1988 (for short

hereinafter referred to as the Act) and sentence

thereunder, however setting aside his conviction and

sentence under Section 7 of the Act.

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2. We have heard Mr. A.T.M. Ranga Ramanujam,

learned senior counsel for the appellant and Ms. Prerna

Singh, learned counsel for the respondents.

3. The prosecution case stems from a complaint laid

by one S. Jagan Mohan Reddy (since deceased) to the

Deputy Superintendent of Police, Anti Corruption Bureau,

Kurnool alleging that the appellant who, at the relevant

time was the Assistant Director, Commissionerate of

Technical Education, Hyderabad had on 3.10.1996

demanded by way of illegal gratification Rs. 1000/- for

effecting renewal of the recognition of his (complainant)

typing institute, being run in the name and style of Rama

Typewriting Institute in Laxminagar B. Camp, Kurnool

since 1992. The complaint disclosed that on negotiation,

the demand was scaled down to Rs. 500/- and the

appellant asked him (complainant) to meet him on

4.10.1996 in Room No. 68 of Meenakshi Lodge, Kurnool

with the money demanded. Acting on the complaint, a

case was registered and a trap was laid on 4.10.1996 and

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the tainted currency notes were recovered, in the process

thereof, from the possession of the appellant. On

completion of the investigation, charge-sheet was filed

against the appellant, whereafter the charges under

Sections 7 & 13(1)(d)(i) & (ii) read with Section 13(2) of the

Act were framed against him to which he pleaded not

guilty. At the trial, the prosecution examined seven

witnesses and also adduced documentary evidence in

support of the charges. As the complainant- S. Jagan

Mohan Reddy had expired prior thereto, he could not be

examined by the prosecution.

4. After the closure of the evidence of the

prosecution, the appellant was examined under Section

313 Cr.P.C. and was confronted with all the incriminating

materials brought on record. He, however, denied the

same.

5. The learned trial court, on an elaborate analysis of

the evidence available, convicted the appellant under

Sections 7 and 13(1)(d)(i) & (ii) read with Section 13(2) of

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the Act and sentenced him to undergo R.I. for one year on

each count and to pay fine of Rs. 1000/-, in default to

suffer S.I. for three months for each offence. The sentences

of imprisonment were, however, ordered to run

concurrently.

6. As adverted to hereinabove, the High Court in the

appeal preferred by the appellant, while upholding his

conviction under Section 13(1)(d)(i) & (ii) read with Section

13(2) of the Act, did set at naught his conviction under

Section 7 of the Act. The sentence qua his conviction

under Section 13(1)(d)(i) & (ii) read with Section 13(2) of the

Act was, as a corollary, sustained.

7. The learned senior counsel for the appellant has

insistently urged that the prosecution had failed to prove

any demand for the alleged illegal gratification involved

and, thus, the vitally essential ingredient of the offences

both under Sections 7 and 13 of the Act being

conspicuously absent, the appellant ought to have been

acquitted of the charge on both counts. The learned senior

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counsel has maintained that even assuming without

admitting that the recovery of the tainted notes from the

appellant had been established, sans the proof of demand

which is a sine qua non for an offence both under Sections

7 and 13 of the Act, the appellants conviction as recorded

by the High Court is on the face of the record

unsustainable in law and on facts. Without prejudice to

the above, learned senior counsel has asserted that the

money shown to have been recovered from the possession

of the appellant was by no means an illegal gratification

demanded by him, but was towards fees for renewal of the

recognition of the complainants typing institute together

with penalty and incidental expenses, and thus, his

conviction under Section 13(1)(d)(i) & (ii)) read with Section

13(2) of the Act as sustained by the High Court, if allowed

to stand, would result in travesty of justice.

8. Learned senior counsel for the appellant to

buttress his contentions, placed reliance on the decision of

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this Court in B. Jayaraj vs. State of Andhra Pradesh

(2014) 13 SCC 55.

9. Learned counsel for the State, as against this, has

assiduously argued that the evidence of the prosecution

witnesses, taken as a whole, demonstrably proved the

demand, receipt and recovery of the illegal gratification

sought for and as such no interference with the appellants

conviction is warranted. According to the learned counsel,

having regard to the office held by the appellant at the

relevant point of time, he was even otherwise not

authorized to receive any deposit towards the renewal of

recognition of the complainants typing institute and that

the evidence adduced by the prosecution did prove the

complicity of the appellant in the offence for which he has

been charged, beyond a reasonable doubt. In

reinforcement of her pleas, learned counsel has drawn our

attention to the relevant excerpts of the evidence on record

more particularly that of PW1-S. Udaya Bhasker and

PW3-G. Sudhakar.

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10. Learned counsel for the respondents sought to

distinguish the decision rendered in B. Jayaraj (supra)

contending that in the face of persuasive evidence of

demand on record, the same is of no avail to the appellant.

11. The materials on record have been duly traversed

by us in order to adequately appreciate and weigh the

competing contentions. Though dealt with exhaustively by

the two courts below, having regard to the profuse

reference to the evidence on record made in the course of

the arguments, we consider it to be apt to advert thereto in

bare essentials and to the extent indispensable.

Admittedly, the complainant S. Jagan Mohan Reddy, the

then Principal of the Rama Typewriting Institute,

Laxminagar, B. Camp, Kurnool could not be examined as a

witness for the prosecution, as he had expired before the

trial. To reiterate, in his complaint lodged with the Deputy

Superintendent of Police, Anti Corruption Bureau, Kurnool

Range, Kurnool on 3.10.1996, he alleged that on the same

date, the appellant, who was then the Assistant Director,

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Commissionerate of Technical Education, Hyderabad, had

visited his institute and had pointed out that because of

his omission to file an application for renewal of recognition

thereof for the year 1997, cancellation of recognition would

ensue resulting in loss of seniority of the institute.

According to the complainant, situated thus, he requested

for the assistance of the appellant who assured that it

would be possible only if he was paid Rs. 1000/-.

According to the complainant, he pleaded his inability to

pay such amount. On this, the appellant reduced his

demand to Rs. 500/- and instructed him (complainant) to

meet him on 4.10.1996 in Room No. 68, Meenakshi Lodge,

Kurnool along with challan of Rs. 360/-, being Rs. 60 as

renewal fee and Rs. 300 as penalty. The complainant,

being disinclined to pay the illegal gratification as

demanded, lodged a complaint with the Deputy

Superintendent of Police, Anti Corruption Bureau, Kurnool

and sought action against the appellant.

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12. After registering the complaint, the investigating

agency initiated a proceeding for laying a trap on 4.10.1996

at the venue indicated by the appellant. In the course of

preparatory steps, five currency notes of denomination of

Rs. 100/- were arranged on which phenolphthalein powder

was applied and were handed over to the complainant to be

paid to the appellant on demand. PW1-S. Udaya Bhaskar

was identified to accompany the complainant as an

aspiring owner of a new proposed typewriting institute. The

members of the trap team were briefed accordingly and

instructions were given to the complainant to flag a signal

in time for the interception of the appellant after he had

received the tainted notes. Accordingly, the complainant

accompanied by PW1-S. Udaya Bhaskar went to the place

agreed upon i.e. Room No. 68, Meenakshi Lodge, Kurnool

on 4.10.1996 with the trap team waiting outside for the

signal to intervene. According to the prosecution, the

complainant and PW1-S. Udaya Bhaskar did meet the

appellant in Room No. 68, Meenakshi Lodge, Kurnool and

on reaching the room, the complainant gave one renewal

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application along with the challan to the appellant who

enquired as to whether he (complainant) had brought the

amount which he had directed him to bring on the previous

day. On this, the complainant took out Rs. 500/- from

the pocket of his shirt on which the phenolphthalein

powder had been applied and handed over the same to the

appellant. The prosecution version is that the appellant,

accordingly, kept the amount in the pocket of his shirt and

it was then on signal being received by the trap team, he

was intercepted and apprehended with the money accepted

by him.

13. PW1-S. Udaya Bhaskar has stated on oath that at

the relevant point of time, he was the Assistant Engineer in

Panchayat Raj Department, Orvakal and that as planned

by the investigating agency to entrap the appellant, he

along with the complainant had gone to room No. 68,

Meenakshi Lodge, Kurnool on 4.10.1996 for meeting the

appellant. Both of them entered into the room of

appellant, whereupon the complainant handed over one

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renewal application along with the challan to the appellant.

This witness stated that on this, the appellant enquired as

to whether the complainant had brought the amount which

he had directed him to bring on the previous day. The

witness stated that the complainant then took out the

currency notes amounting to Rs. 500/- from the pocket of

his shirt as arranged and did hand over the same to the

complainant, who after counting the same, kept those in

the pocket of his shirt. The witness also testified, that he

then told the appellant that he too had started a typing

institute and would require a license. The appellant, in

reply, asked him to do the needful as others had been

doing. According to this witness, while he was talking to

the appellant, as previously arranged, the complainant

signalled the trap team, whereupon the appellant was

apprehended and the currency notes were recovered from

him. On verification, the said notes tallied with those

which had been decided to be used in the trap operation.

The fingers of the hands of the appellants, when dipped in

the sodium carbonate solution also turned pink. The

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pocket of the shirt of the appellant, as testified by this

witness, also turned pink when rinsed in sodium carbonate

solution.

14. The evidence of PW3-S. Sivaiah Naidu is to the

effect that he, on 6.8.1996 had made an application to the

Technical Board for recognition of his institute, whereafter

on 3.10.1996, the appellant in the capacity of Assistant

Director of Technical Education, inspected his institute and

verified all records. According to this witness, when he

enquired about the recognition certificate, the appellant

stated that unless some amount was paid to him way of

gratification, he would not issue the recognition certificate.

The witness alleged that he too was asked to meet the

appellant in Room No. 68, Meenakshi Lodge,Kurnool at

8.30 P.M.

15. PW7-Iliyase Sait, who at the relevant time was

posted as Deputy Superintendent of Police, Kurnool Range,

Kurnool, in his evidence narrated in detail the steps taken

to arrange for the trap to nab the appellant, instructions

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to the members of the trap team, recovery of five currency

notes amounting to Rs. 500/- smeared with

phenolphthalein powder from the possession of the

appellant and submission of charge-sheet against him on

completion of the investigation.

16. The evidence of other witnesses being not

essentially related to the aspect of demand, receipt and

recovery of the amount of illegal gratification with which

the appellant had been charged, does not call for a detailed

reference.

17. It is expedient at this juncture to set out the

relevant extracts of Sections 7 (as it stands today) and 13

of the Act under which the appellant had been charged.

7. Public servant taking gratification otherthan legal remuneration in respect of anofficial act: Whoever, being, or expecting to be apublic servant, accepts or obtains or agrees toaccept or attempts to obtain from any person, forhimself or for any other person, any gratificationwhatever, other than legal remuneration, as amotive or reward for doing or forbearing to do anyofficial act or for showing or forbearing to show, inthe exercise of his official functions, favour ordisfavour to any person or for rendering or

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attempting to render any service or disservice toany person, with the Central Government or anyState Government or Parliament or the Legislatureof any State or with any local authority,corporation or Government company referred to inclause (c) of section 2, or with any public servant,whether named or otherwise, shall be punishablewith imprisonment which shall be not less than[three years] but which may extend to [sevenyears] and shall also be liable to fine.

--- --- --- --- --- --- --- ---

13. Criminal misconduct by a public servant

(1) A public servant is said to commit the offence ofcriminal misconduct,-

--- --- --- ---

(d) if he,-

(i) by corrupt or illegal means, obtains forhimself or for any other person any valuablething or pecuniary advantage; or

(ii) by abusing his position as a public servant,obtains for himself or for any other personany valuable thing or pecuniary advantage;

--- --- --- --- ---

18. This Court in A. Subair vs. State of Kerala

(2009)6 SCC 587, while dwelling on the purport of the

statutory prescription of Sections 7 and 13(1)(d) of the Act

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ruled that the prosecution has to prove the charge

thereunder beyond reasonable doubt like any other

criminal offence and that the accused should be considered

to be innocent till it is established otherwise by proper

proof of demand and acceptance of illegal gratification,

which are vital ingredients necessary to be proved to record

a conviction.

19. In State of Kerala and another vs. C.P. Rao

(2011) 6 SCC 450, this Court, reiterating its earlier dictum,

vis--vis the same offences, held that mere recovery by

itself, would not prove the charge against the accused and

in absence of any evidence to prove payment of bribe or to

show that the accused had voluntarily accepted the money

knowing it to be bribe, conviction cannot be sustained.

20. In a recent enunciation by this Court to discern

the imperative pre-requisites of Sections 7 and 13 of the

Act, it has been underlined in B. Jayaraj (supra) in

unequivocal terms, that mere possession and recovery of

currency notes from an accused without proof of demand

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would not establish an offence under Sections 7 as well as

13(1)(d)(i)&(ii) of the Act. It has been propounded that in

the absence of any proof of demand for illegal gratification,

the use of corrupt or illegal means or abuse of position as a

public servant to obtain any valuable thing or pecuniary

advantage cannot be held to be proved. The proof of

demand, thus, has been held to be an indispensable

essentiality and of permeating mandate for an offence

under Sections 7 and 13 of the Act. Qua Section 20 of the

Act, which permits a presumption as envisaged therein, it

has been held that while it is extendable only to an offence

under Section 7 and not to those under Section 13(1)(d)

(i)&(ii) of the Act, it is contingent as well on the proof of

acceptance of illegal gratification for doing or forbearing to

do any official act. Such proof of acceptance of illegal

gratification, it was emphasized, could follow only if there

was proof of demand. Axiomatically, it was held that in

absence of proof of demand, such legal presumption under

Section 20 of the Act would also not arise.

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21. The proof of demand of illegal gratification, thus,

is the gravamen of the offence under Sections 7 and 13(1)

(d)(i)&(ii) of the Act and in absence thereof, unmistakably

the charge therefor, would fail. Mere acceptance of any

amount allegedly by way of illegal gratification or recovery

thereof, dehors the proof of demand, ipso facto, would thus

not be sufficient to bring home the charge under these two

sections of the Act.

22. As a corollary, failure of the prosecution to prove

the demand for illegal gratification would be fatal and mere

recovery of the amount from the person accused of the

offence under Sections 7 or 13 of the Act would not entail

his conviction thereunder.

23. The sheet anchor of the case of the prosecution is

the evidence, in the facts and circumstances of the case, of

PW1-S. Udaya Bhaskar. The substance of his testimony,

as has been alluded to hereinabove, would disclose qua the

aspect of demand, that when the complainant did hand

over to the appellant the renewal application, the latter

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enquired from the complainant as to whether he had

brought the amount which he directed him to bring on the

previous day, whereupon the complainant took out Rs.

500/- from the pocket of his shirt and handed over the

same to the appellant. Though, a very spirited endeavour

has been made by the learned counsel for the State to

co-relate this statement of PW1- S. Udaya Bhaskar to the

attendant facts and circumstances including the recovery

of this amount from the possession of the appellant by the

trap team, identification of the currency notes used in the

trap operation and also the chemical reaction of the

sodium carbonate solution qua the appellant, we are left

unpersuaded to return a finding that the prosecution in

the instant case has been able to prove the factum of

demand beyond reasonable doubt. Even if the evidence of

PW1- S. Udaya Bhaskar is accepted on the face value, it

falls short of the quality and decisiveness of the proof of

demand of illegal gratification as enjoined by law to hold

that the offence under Section 7 or 13(1)(d)(i)&(ii) of the

Act has been proved. True it is, that on the demise of the

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complainant, primary evidence, if any, of the demand is not

forthcoming. According to the prosecution, the demand

had in fact been made on 3.10.1996 by the appellant to the

complainant and on his complaint, the trap was laid on the

next date i.e. 4.10.1996. However, the testimony of PW1-

S. Udaya Bhaskar does not reproduce the demand allegedly

made by the appellant to the complainant which can be

construed to be one as contemplated in law to enter a

finding that the offence under Section 7 or 13(1)(d)(i)&(ii) of

the Act against the appellant has been proved beyond

reasonable doubt.

24. In our estimate, to hold on the basis of the

evidence on record that the culpability of the appellant

under Sections 7 and 13(1)(d)(i)&(ii) has been proved,

would be an inferential deduction which is impermissible

in law. Noticeably, the High Court had acquitted the

appellant of the charge under Section 7 of the Act and the

State had accepted the verdict and has not preferred any

appeal against the same. The analysis undertaken as

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hereinabove qua Sections 7 and 13(1)(d)(i)&(ii) of the Act,

thus, had been to underscore the indispensability of the

proof of demand of illegal gratification.

25. In reiteration of the golden principle which runs

through the web of administration of justice in criminal

cases, this Court in Sujit Biswas vs. State of Assam

(2013)12 SCC 406 had held that suspicion, however grave,

cannot take the place of proof and the prosecution cannot

afford to rest its case in the realm of may be true but has

to upgrade it in the domain of must be true in order to

steer clear of any possible surmise or conjecture. It was

held, that the Court must ensure that miscarriage of

justice is avoided and if in the facts and circumstances,

two views are plausible, then the benefit of doubt must be

given to the accused.

26. The materials on record when judged on the touch

stone of the legal principles adumbrated hereinabove,

leave no manner of doubt that the prosecution, in the

instant case, has failed to prove unequivocally, the

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demand of illegal gratification and, thus, we are

constrained to hold that it would be wholly un-safe to

sustain the conviction of the appellant under Section 13(1)

(d)(i)&(ii) read with Section 13(2) of the Act as well. In the

result, the appeal succeeds. The impugned judgment and

order of the High Court is hereby set-aside. The appellant

is on bail. His bail bond stands discharged. Original

record be sent back immediately.

...CJI. (H.L. DATTU)

.....J. (V. GOPALA GOWDA)

.....J. (AMITAVA ROY)

NEW DELHI;SEPTEMBER 14, 2015.

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